Governmental Entity Damages Liability Resulting Third Party Conduct

Under the Tort Claims Act, a governmental entity cannot be held liable for a loss resulting from the act or omission of a person other than an employee, including, but not limited to, the criminal acts of third persons. See S.C. Code Ann 15-78-60 (20) (Supp. 1999). Notwithstanding this provision, our supreme court upheld a jury verdict against the City of Greenville based upon its negligence in failing to adequately secure its auditorium during the concert. Although the City argued it was statutorily immune from liability under 15-78-60 (20), our supreme court rejected this contention "where the very basis upon which appellant is claimed to be negligent is that appellant created a reasonably foreseeable risk of such third party conduct." Greenville Mem'l Auditorium, 301 S.C. at 247, 391 S.E.2d at 549. Prior to Greenville Memorial Auditorium, our supreme court alluded to the negligence of those who create a reasonably foreseeable risk of such third party criminal conduct as a basis for liability in Shipes v. Piggly Wiggly St. Andrews, Inc., 269 S.C. 479, 238 S.E.2d 167 (1977). In Shipes, the court quoted with approval from the Restatement of Torts: Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection. 269 S.C. at 485, 238 S.E.2d at 169 (quoting Restatement of Torts 2d 344 comment (f)); see Daniel v. Days Inn of America, Inc., 292 S.C. 291, 356 S.E.2d 129 (Ct. App. 1987); Munn v. Hardee's Food Sys., Inc., 274 S.C. 529, 266 S.E.2d 414 (1980); Miletic v. Wal-Mart Stores, Inc., 339 S.C. 327, 529 S.E.2d 68 (Ct. App. 2000); Dalon v. Golden Lanes, Inc., 320 S.C. 534, 466 S.E.2d 368 (Ct. App. 1996); Callen v. Cale Yarborough Enter., 314 S.C. 204, 442 S.E.2d 216 (Ct. App. 1994).